A. G. Breitweiser Lumber Co. v. Crick

Citations

• 55 Pa. Super. 72
• 1913 Pa. Super. LEXIS 320

Syllabus

<p>Practice, C. P. — Pleading—Sufficiency of statement of claim — Act of May 25, 1887, P. L. 271.</p> <p>1. To entitle a plaintiff to judgment for want of a sufficient affidavit of defense, the statement of Ms demand under the Act of May 25,1887, P. L. 271, must be self-sustaining; that is to say, it must set forth in clear and concise terms a good cause of action, by wMch is meant such averments of facts as, if not controverted, would entitle him to a verdict for the amount that is claimed.</p> <p>Practice, C. P. — Affidavit of defense — Set-off.</p> <p>2. Affidavits of defense should aver the facts depended upon with reasonable precision and distinctness. Averments of set-off must be as specific as those used in a statement of claim. The defendant in respect to such claim is the actor, and the obligation is upon him to aver his set-off in terms incapable of being misunderstood.</p> <p>3. In an action to recover a balance alleged to be due on building materials an affidavit of defense is insufficient which avers that the defendants were obliged to make many changes and pay bills, averring a lump sum as a set-off, but docs not set forth the different items or separate amounts thereof.</p> <p>4. Such an affidavit is also insufficient which sets up an aggregate sum which the defendants claim they were compelled to forfeit and pay because of failure to complete their own contract by a time stated, where there is ho time fixed for the delivery of the material, and there is no averment that the limitation of time was omitted from the contract by fraud, accident or mistake.</p> <p>Contract — Breach—Delay—Damages.</p> <p>5. In an action to recover for goods sold and delivered, if the defendant alleges loss by reason of the plaintiff’s failure to deliver in time, the measure of damages, where the materials could have been1 purchased in the open market, is the difference between the contract price and the market price.</p>